In an interesting customs case continuing the Canada Border Service Agency’s (“CBSA”) assault on toy replica firearms, the Federal Court of Appeal (“FCA”) pointed out that allegations of bias leveled at the CBSA and the Canadian International Trade Tribunal (“CITT”) during the appeal process are serious and come with a “correspondingly heavy burden on the party alleging bias to prove the allegations”.  This is not good news for taxpayers and importers who often come to us feeling that the CBSA or the Canada Revenue Agency (“CRA”) has pre-judged their particular appeals, with the end-result in mind.

Byrne v. Canada, 2025 FCA 30 – Background

James Byrne (“the Appellant”) attempted to import an F Series 226 Rail Gas Blowback airsoft pistol into Canada (“airsoft pistol”), which was seized by the CBSA on the grounds it met the definition of a replica firearm under subsection 84(1) of the Criminal Code, and was therefore prohibited from importation under subsection 136(1) of the Customs Tariff.  The Appellant appealed to the CITT, and the CITT agreed with the CBSA and their expert, finding the airsoft pistol was strikingly identical to a SIG Sauer model P226 MK 25 pistol.

The FCA Decision – Deference to CITT & A Heavy Burden for Bias

The Appellant’s position on judicial review was that the CITT made errors in assessing the characteristics of the airsoft pistol and preferring the evidence of the CBSA expert.  To the contrary, the FCA found that on a reasonableness standard, the CITT provided logical reasons for their evidentiary preference and that their findings of fact were entitled to deference.

The Appellant also argued the CITT treated him unfairly in denying him a reasonable opportunity to have his expert examine the airsoft pistol, and the CITT prejudged his appeal and was bias against him.  

On the expert examination issue, the FCA affirmed the CITT’s findings that the Appellant was afforded a reasonable opportunity to have an expert examine the air pistol when the CBSA offered him access in Ottawa according to their security protocols.  The FCA was not persuaded he was treated unfairly in this regard as the Appellant chose to forgo that option and have his expert examine a purportedly identical good in Buffalo, New York.

Concerning the Appellant’s allegations of bias, the FCA noted that under the “informed person” test for bias “substantial and cogent evidence of bias [was] required” to prove the allegations.  The fact that the CITT had not accepted the Appellant’s arguments was not evidence of bias.  Consequently, as the FCA determined the Appellant did not point to anything in the record supporting an allegation of bias, the court was not convinced the CITT treated him unfairly.

Takeaways

When we are retained to assist taxpayers and importers in further appeals of CRA or CBSA actions, we often get an important back-story that typically involves pre-judged actions on the part of the government officials, often with a blind-eye to the actual facts of the case, and more focused on the desired end-result (i.e., assessment, seizure, notice of action).  The FCA has served notice that for the most part, these will be irrelevant considerations, unless there is “substantial and cogent evidence of bias” on the face of the matter.   In other words, a “mere suspicion” will not suffice.

What is instead required in these sorts of appeals is a strong factual foundation to support well-developed legal arguments – and usually, experienced legal advice is required.

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